Suid-Afrika het 'n gemengde regstelsel. Die stereotiepe benadering is gebaseer op die teenstelling Engels-Afrikaans, wat gedurende die 20ste eeu die universiteite en gevolglik die paradigmas regeer het. Die doel van hierdie artikel is om die uitwerking van die stare decisis-leerstuk (Engelse reg) en die curia ius novit-reël (Europese siviele reg) op die Suid-Afrikaanse regsontwikkeling vas te stel. Vir hierdie doel is twee hofbeslissings ontleed ten aansien van hul keuse en toepassing van bronne, die eerste gegee gedurende die beginjare van die Kaapse hooggeregshof, en die ander gedurende die tagtigerjare van die 20ste eeu. Albei sake het betrekking op die bankier-kliënt-verhouding en meer spesifiek die toepaslikheid van die exceptio doli in hierdie konteks.
The purpose of this article is to ascertain the effect of the stare decisis doctrine of English law and the curia ius novit rule of European civil law on the development of South African law. For this purpose two decisions are analysed with regard to their choice and application of sources, the one given during the initial years of the Cape supreme court, and the other during the eighties of the 20th century.
The Charters of Justice of 1827 and 1832 reorganised the administration of justice in the Cape colony. An independent supreme court with professional judges was created and the laws of criminal and civil procedure were reformed. Absence of the curia ius novit rule frustrated the aspired assimilation of colonial law to British jurisprudence. This rule instructs the judge to find and apply the law ex officio, but in common law the English judge limits himself to the legal arguments raised by parties. Thus reception of Roman-Dutch law depended to a large extent on the legal practitioners in the Cape. The pre-1828 advocates were all doctors of law who had studied in the Netherlands. The Charters of Justice did not introduce the binding force of precedent, but it has been generally accepted that from the earliest days of the Cape supreme court this doctrine constituted an essential element of South African common law. The purpose of this article is to ascertain the effect of the stare decisis doctrine of English law and the curia ius novit rule of European civil law on the development of South African law. For this purpose two decisions are analysed with regard to their choice and application of sources, the one given during the initial years of the Cape supreme court, and the other during the eighties of the 20th century.
The Charters of Justice of 1827 and 1832 reorganised the administration of justice in the Cape colony. An independent supreme court with professional judges was created and the laws of criminal and civil procedure were reformed. Absence of the curia ius novit rule frustrated the aspired assimilation of colonial law to British jurisprudence. This rule instructs the judge to find and apply the law ex officio, but in common law the English judge limits himself to the legal arguments raised by parties. Thus reception of Roman-Dutch law depended to a large extent on the legal practitioners in the Cape. The pre-1828 advocates were all doctors of law who had studied in the Netherlands. The Charters of Justice did not introduce the binding force of precedent, but it has been generally accepted that from the earliest days of the Cape supreme court this doctrine constituted an essential element of South African common law. In Brink’s Trustees v South African Bank the trustees of the insolvent Brink offered to pay the bank the amount of the secured debt in return for the transferred security. The bank refused this offer, maintaining that Brink’s other, unsecured, debts to the bank had to be repaid first. Counsel for the plaintiffs argued that Codex 8, 26, 1 granted the bank a jus retentionis against Brink himself until all other debts due by him to the bank had been paid. However, this right of retention could not be exercised against his creditors after his insolvency, since the remedy to enforce the right of retention, the exceptio doli mali, could not be pleaded against the other creditors of the insolvent debtor. Insolvency had divested the latter of his whole estate and vested it in the general body of the creditors, represented by the trustees. Counsel relied on Roman-Dutch law, European ius commune, colonial law, Scottish law, Anglo-American common law, and a Chancery decision. Counsel for the defendant relied more on Dutch and continental authors and maintained that Codex 8, 26, 1 granted the ius retentionis not only against the debtor himself, but also against all persons deriving any right from him or through him, except a secundus creditor hypothecarius. The court gave judgment for the plaintiffs and no grounds were reported, which provides an excellent example of Denis Cowen’s observation that while in form our law is largely judge-made, the work of the judge is often the work of intelligent selection, as in many instances judges simply put the stamp of the state’s authority on propositions which counsels have worked out for them in advance.
In Bank of Lisbon and South Africa v De Ornelas the Ornelas Fishing Company paid off the overdraft and closed its account with the bank. The De Ornelas brothers demanded return of the securities provided, which the bank refused to do until the outcome of an action which the bank intended to institute against the company for damages resulting from alleged breach of contract. The court a quo upheld the application for the return of the furnished securities, against which judgment the bank appealed.
For the bank it was argued that the application was based on the replicatio doli and that the exceptio doli did not exist anymore in modern law, which argument was founded on a long list of precedents. The respondents maintained that the bank was attempting to use the securities for a purpose not intended by the parties when the contracts were concluded. Such an attempt to abuse a right would constitute unconscionable conduct and result in gross injustice or great inequity. Again the argument was nearly exclusively based on case law. The fact that the Codex text remained unmentioned may be explained by the conclusion drawn by Chorus, namely that each time a text from the Corpus Iuris is used by a court in a precedent system, the text in question ceases to be a source of law as it has been replaced by the decision which serves as precedent. The citation of Brink’s Trustees can be explained only by the supposition that the 19th century fell outside the scope of counsel’s concept of relevance.
The question arises whether the absence of curia ius novit does prohibit independent judicial research. In the 1876 decision of Mills and Sons v Trustee of Benjamin Bros De Villiers DJ had attended counsels to the possible application of constitutum possessorium and given them the opportunity of handing in authorities on this point. In the Lisbon case Joubert JA limited himself to the legal question as determined by the parties, but undertook a thorough investigation into the origin, development, scope and applicability of the exceptio doli. The court decided on the basis of primary and secondary sources that the supersession of the formula procedure by the cognitio extraordinaria was the end of the exceptio doli as a technical term of pleading; that as the result of the new rule pacta sunt servanda and new principle that all contracts were regulated by good faith, the exceptio doli was never part of Roman-Dutch law. Joubert JA held that all sources deviating from this decision, such as Donellus, Brunneman, Zoesius, Tuldenus, Voet, Van der Keessel, Van der Linden et al. stated Roman law and not Roman-Dutch law. Finally, the court was of the opinion that the previous dicta of the appellate division relative to this defence were not binding.
Thus the observation that once a Roman law or Roman-Dutch law text has been recepted by a court, such text is replaced by the decision which now serves as precedent has been proven correct in the Lisbon case where counsel deemed it superfluous to research outside precedent and outside a certain period. Another conclusion is that absence of the curia ius novit rule in common law does not prevent judicial research, although in the common law tradition such research is critically received as motivated by the desire to ignore precedent. The merits of the judgment in the Lisbon case are not discussed, but a concluding remark is made that judicial research involving reception or rejection of Roman law is increasingly unlikely in modern South African law since the Latin requirement for a law degree has been abolished.
